Análise da aplicabilidade da imunidade recíproca à CAERN: a partir da alteração no marco do saneamento básico (Lei n.º 14.026/2020)

Abstract

The present work aims to clarify the possibility, or not, of the Companhia de Águas e Esgotos do Rio Grande do Norte to obtain recognition of the Reciprocal Tax Immunity, as provided for in article 150, item VI, item "a" of the CF. The research on the proposed theme is justified by the situation of the Companies that operate in the Brazilian sanitation sector after the advent of Law nº 14.026/2020, which promoted changes in the sanitation framework provided for in Law nº 11.445/2007, inserting the requirement that the municipalities promote a bidding process to choose the public service concessionaire that will operate during the concession period, giving rise to the possibility of competition between the Companies. In the analysis of this context, the rules of Tax Immunity present in the CF and the precedents of applicability of the Reciprocal Tax Immunity to the Brazilian sanitation sector were analyzed, highlighting the fact that the supply of treated water is considered an essential public service. Therefore, a bibliographic study was developed about the concepts of tax immunity and the characterizing elements of the recognition of reciprocal tax immunity, through the observance of characteristics such as: being privately held and not distributing dividends to private investors. In addition, a search was made of judicial precedents, from several courts in the country, including the STF and the STJ, basing the recognition of reciprocal tax immunity to CAERN, through the precedents attributed to the aforementioned Company. Therefore, it is concluded by the need for CAERN to seek the judiciary in order to demonstrate the distinguishing of its specific case in relation to the topic 508 of general repercussion of the STF, wrongly framed, because by the shareholding characteristics of CAERN, the aforementioned would not be applicable precedent. On the other hand, topic 1,140 of general repercussion of the STF has all the parameters of incidence of the precedent, therefore the adequate thesis for the recognition of the reciprocal tax immunity of the CAERN.